Citation Nr: 0424062
Decision Date: 08/30/04 Archive Date: 09/07/04
DOCKET NO. 03-17 467 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for an acquired
psychiatric disability, to include post-traumatic stress
disorder (PTSD), claimed as secondary to service-connected
left ankle disability.
2. Entitlement to a total disability evaluation based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Robert A. Friedman, Attorney
at Law
ATTORNEY FOR THE BOARD
M. Carsten, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1981 to
December 1981.
This matter comes before the Board of Veterans' Appeals
(Board) from a September 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which denied entitlement to the
benefits sought. The veteran subsequently perfected this
appeal.
In the December 2002 notice of disagreement, the veteran's
attorney argued that the April 1987 decision to deny service
connection for mental disorders was clearly and unmistakably
erroneous and could not be final. He further asserted that
subsequent decisions denying the veteran's claim because new
and material evidence had not been submitted were also
clearly and unmistakably erroneous. The Board construes
these statements as raising claims of clear and unmistakable
error (CUE) in the April 1987, April 1994, and January 1996
rating decisions. These claims are referred to the RO for
the appropriate action.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A.
§ 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2003). This law eliminated the concept of a
well-grounded claim, redefined the obligations of VA with
respect to the duty to assist, and imposed on VA certain
notification requirements.
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R.
§ 3.159(b) (2003); see Quartuccio v. Principi, 16 Vet. App.
183 (2002) (holding that both the statute, 38 U.S.C. §
5103(a), and the regulation, 38 C.F.R.
§ 3.159, clearly require the Secretary to notify a claimant
which evidence, if any, will be obtained by the claimant and
which evidence, if any, will be retrieved by the Secretary).
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003).
New and Material Evidence
In April 1987, the RO denied entitlement to service
connection for anxiety/depression, essentially based on
findings that a nervous condition was not present during
service and that there was no relationship between the
claimed disability and the service-connected left ankle
disability. In April 1994 and January 1996 the RO denied the
veteran's claims to reopen, finding that new and material
evidence had not been submitted. The veteran did not appeal
these decisions and they are final, absent a showing of CUE.
See 38 U.S.C.A. §§ 5109A, 7105(c) (West 2002); 38 C.F.R.
§§ 3.104, 3.105(a), 20.302, 20.1103 (2002).
As stated in the introduction, the veteran's attorney raised
claims of CUE in the above-referenced rating decisions. The
Court of Appeals for Veterans Claims (Court) has held that
when a determination on one issue could have a significant
impact on the outcome of another issue, such issues are
considered inextricably intertwined and VA is required to
decide those issues together. See Harris v. Derwinski, 1
Vet. App. 180 (1991).
The disposition of the veteran's CUE claims could have a
significant impact on the pending appeal to reopen. That is,
a successful CUE claim would vitiate the finality of that
particular decision and could effectively render moot the
issue of whether new and material evidence has been submitted
to reopen that claim. Accordingly, the Board finds that
these issues are inextricably intertwined and will defer
adjudication of the veteran's new and material claim pending
the outcome of his CUE claims.
Entitlement to TDIU
The veteran contends that he is entitled to TDIU due to his
service-connected left ankle disability and PTSD/depression.
Entitlement to TDIU requires consideration of the effect of
all service-connected disabilities on the veteran's
employability. The determination regarding the veteran's
claim to reopen entitlement to service connection for an
acquired psychiatric disability, to include PTSD, could have
a significant impact on the veteran's TDIU claim. Thus,
these issues are also inextricably intertwined.
The Board notes, however, that additional development of the
evidence is necessary. In March 2003, the veteran reported
that he continues with treatment at the VA medical center
(VAMC) in Tampa, Florida. He tried vocational rehabilitation
and received training; however, he is still unable to cope at
work. He also reported that he was granted disability
benefits from the Social Security Administration. On review,
it appears that VA records subsequent to September 2003,
vocational rehabilitation records, and Social Security
records have not been obtained. In May 2003, the RO
requested employment information from Dodge's Store; however,
a response was not received.
Rather than defer all action on this claim pending the
outcome of the veteran's claim to reopen, the Board finds
that the veteran would not be prejudiced by additional
development at this time. See Bernard v. Brown, 4 Vet. App.
384 (1993).
Accordingly, this case is REMANDED as follows:
1. The RO must review the claims folder
and ensure that all notification and
development action required by the VCAA
are fully complied with and satisfied.
38 U.S.C.A. §§ 5102, 5103 and 5103A (West
2002); 38 C.F.R. § 3.159 (2003).
2. The RO should obtain the veteran's
medical records from the VAMC in Tampa
for the period from September 2003 to the
present. All records obtained should be
associated with the claims folder.
3. The RO should request the veteran's
vocational rehabilitation folder. Any
records obtained should be associated
with the claims folder.
4. The RO should request the following
records concerning the veteran from the
Social Security Administration: all
medical records upon which an award of
disability benefits was based. Any
records obtained should be associated
with the claims folder.
5. The RO should make a follow-up
request for employment information from
Dodge's Store. Information obtained
should be associated with the claims
folder.
6. The RO should adjudicate the
veteran's claims of CUE in the April 1987
rating decision, the April 1994 rating
decision, and the January 1996 rating
decision. If the veteran's claims are
denied, the veteran should be notified of
the decision and provided an opportunity
to perfect a substantive appeal.
7. Upon completion of the requested
development, and any additional
development deemed appropriate, the RO
should readjudicate the following: 1)
whether new and material evidence has
been submitted to reopen the veteran's
claim of entitlement to service
connection for an acquired psychiatric
disability, to include PTSD; and 2)
entitlement to TDIU. If the benefits
sought on appeal remain denied, the
appellant and his representative should
be provided with a supplemental statement
of the case (SSOC) and an opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).